CATHEDRAL CANDLE COMPANY

and

THE A.I. ROOT COMPANY

Plaintiffs,

v.

UNITED STATES INTERNATIONAL TRADE

COMMISSION, DEANNA TANNER OKUN,

Chairman,

and 

UNITED STATES BUREAU OF CUSTOMS

AND BORDER PROTECTION, ROBERT C.

BONNER, Commissioner,

Defendants.

Slip Op. 03-131

UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: Pogue, Judge

Court No. 03-00196

[Plaintiffs’ motion for judgment on the agency record denied;

judgment entered for defendants.]

Decided: October 14, 2003

PATTON BOGGS LLP (Daniel E. Waltz, Steven M. Schneebaum, Martha

M. Kendrick, Amy Davine Kim) for Plaintiffs Cathedral Candle

Company and The A.I. Root Company.

Lyn M. Schlitt, General Counsel, James M. Lyons, Deputy General

Counsel, Mark B. Rees, Attorney-Advisor, Office of the General

Counsel, U.S. International Trade Commission, for Defendant U.S.

International Trade Commission.

Peter D. Keisler, Assistant Attorney General, David M. Cohen,

Director, Paul D. Kovac, Trial Attorney, Commercial Litigation

Branch, Civil Division, U.S. Department of Justice, Ellen C.

Daly, Senior Attorney, Office of the Chief Counsel, United States

Bureau of Customs and Border Protection, Of Counsel, for

Defendant U.S. Bureau of Customs and Border Protection.
Court No. 03-00196 Page 2

OPINION

POGUE, Judge: This matter is before the Court on Plaintiffs’

motion for judgment upon the agency record. Plaintiffs allege that

Defendants unlawfully deprived them of their share of 2001 and 2002

distributions under the Continued Dumping and Subsidy Offset Act of

2000. 19 U.S.C. § 1675c (2000). The Court has jurisdiction under

28 U.S.C. § 1581(i). The Court denies Plaintiffs’ motion and

grants judgment for Defendants. 

Background

On September 4, 1985, the National Candle Association filed an

antidumping petition alleging material injury or threat of material

injury to a domestic industry from imports of petroleum wax candles

from China. Petroleum Wax Candles From the People’s Republic of

China, 50 Fed. Reg. 39,743, 39,745 (Dep’t. Commerce Sept. 30, 1985)

(initiation of antidumping duty investigation). During the

consideration of the petition by the Department of Commerce and

Defendant International Trade Commission (“ITC”), questionnaires

were sent to domestic producers of candles. E.g., Candles From the

People’s Republic of China, Producer’s Questionnaire, ITC’s

Certified Admin. Rec. (“ITC CAR”) List 1, Doc. 1 (“Blank

Questionnaire”); Response from the A.I. Root Company to Candles

From the People’s Republic of China Producer’s Questionnaire, ITC

CAR List 1, Doc. 2 (June 20, 1986) (“Root’s Quest. Resp.”);

Response from Cathedral Candle Company to Candles from the People’s
Court No. 03-00196 Page 3

Republic of China Producer’s Questionnaire, ITC CAR List 1, Doc. 3

(May 29, 1986) (“Cathedral’s Quest. Resp.”). Both Plaintiffs

received questionnaires. Id. Respondents to the questionnaires

were asked to state whether they supported the National Candle

Association’s petition. Root’s Quest. Resp. at 5; Cathedral’s

Quest. Resp. at 5. Plaintiffs both replied in the affirmative.

Id. After an investigation, on August 28, 1996, the Department of

Commerce published an antidumping order covering the Chinese

imports. Petroleum Wax Candles from the People’s Republic of

China, 51 Fed. Reg. 30,686, 30,686-87 (Dep’t Commerce Aug. 28,

1986) (antidumping duty order).

The Continued Dumping and Subsidy Offset Act of 2000 (“Byrd

Amendment” or “the Act”) directs that funds collected pursuant to

antidumping and countervailing duty orders be annually distributed

to “affected domestic producers” (“ADPs”). 19 U.S.C. § 1675c(a).

The Byrd Amendment defines an “affected domestic producer” as any

party who was a petitioner or supporter of an antidumping or

countervailing duty petition, and who remains in operation. 19

U.S.C. § 1675c(b)(1). 

Under the Byrd Amendment, ITC must forward to Defendant United

States Bureau of Customs and Border Protection (“Customs”) a list

of ADPs (“the potential eligibility list”). 19 U.S.C. § 1675(b),

(d). Customs, in turn, must publish the potential eligibility list

in the Federal Register at least thirty days before it distributes
Court No. 03-00196 Page 4

any of the collected duties, so that ADPs may file certifications

of their eligibility, and submit a claim to receive a portion of

the collected duties. 19 U.S.C. § 1675c(d)(2). The Act also

authorizes Customs to promulgate, by regulation, procedures to be

followed in distributing collected duties. 19 U.S.C. § 1675c(c).

Pursuant to the Byrd Amendment, on December 29, 2000,

Defendant ITC transmitted to Defendant Customs a list of affected

domestic producers for all antidumping and countervailing duty

orders then in effect, including the 1986 order covering petroleum

wax candles from China. Letter from Stephen Kaplan, Chairman,

Int’l Trade Comm’n, to The Honorable Raymond Kelly, Comm’r of

Customs, ITC CAR List 1, Doc. 5 at 5. (Dec. 29, 2000) (“ITC Support

List”). In the letter accompanying the list (“the explanatory

letter”), Defendant ITC explained that it believed provisions of

the Byrd Amendment were in conflict with § 777(b)(1)(a) of the

Tariff Act of 1930 (“Tariff Act”). See id. at 1. That section

deals with the confidentiality of certain information provided to

the agency, including any information designated as proprietary by

the party providing the information. 19 U.S.C. § 1677f(b)(1)(A).

The ITC maintains that its practice is to regard indications of

support for a petition as confidential information; moreover, the

words “Business Confidential” appeared at the top of the pages of

the questionnaire used in evaluating the petroleum wax candle

petition. Def. ITC’s Opp’n to Mot. J. Agency R. at 16-17; 19
Court No. 03-00196 Page 5

C.F.R. § 201.6 (2000); Blank Questionnaire, ITC CAR List 1, Doc. 1.

Having explained its belief that there was a conflict between

the Act and its regulation under the Tariff Act, Defendant ITC

placed on the potential eligibility list only the names of those

ADPs who had affirmatively waived the confidentiality of their

questionnaire responses. ITC Support List, ITC CAR List 1, Doc. 5.

Defendant Customs published the list as provided by Defendant ITC

on its website by early 2001, along with the explanatory letter.

Def. ITC’s Opp’n to Mot. J. Agency R. at 23. In June 2001, Customs

published a notice of the receipt of the list and its online

publication. Distribution of Continued Dumping and Subsidy Offset

to Affected Domestic Producers, 66 Fed. Reg. 33,920, 33,920-21

(Dep’t Treasury June 26, 2001) (proposed rule) (“June 26, 2001

Notice”). The June 26, 2001 notice also stated that the list would

be updated as necessary, and asked that any issues regarding the

list be brought to the ITC’s attention. Id.

In August 2001, Customs published, in accordance with the Byrd

Amendment, a notice of proposed distribution in the Federal

Register. Distribution of Continued Dumping and Subsidy Offset to

Affected Domestic Producers, 66 Fed. Reg. 40,782 (Dep’t Treasury

Aug. 3, 2001) (notice of intent to distribute offset for fiscal

year 2001) (“August 3, 2001 Notice”). That notice contained an

updated list of ADPs, but was not accompanied by any explanation of

the effects of the Tariff Act or the ITC’s confidentiality
Court No. 03-00196 Page 6

1Customs promulgated a rule requiring that certifications be

filed within sixty days of the publication of notice of intent to

distribute in the Federal Register. 19 C.F.R. § 159.63(a)(2001).

This deadline for certification filing ensures that Customs meets

its own statutory deadline for calculating and distributing

claimants’ shares of collected duties. 19 U.S.C. § 1675c(c).

The final rule regarding distributions was published in the

Federal Register on September 21, 2001. Distribution of

Continued Dumping and Subsidy Offset to Affected Domestic

Producers, 66 Fed. Reg. 48,546, 48,553 (Dep’t Treasury, Sept. 21,

2001) (final rule).

2We note that the list of ADPs was not static. According to

Customs, the potential eligibility list was continuously updated

from the time it appeared on Customs’ website as ADPs that had

initially not been listed demonstrated their eligibility for

certification. Def. Customs’ Opp’n to Mot. J. Agency R. at 14-16.

regulation. Id. The August 3, 2001 notice also stated that

certifications for ADPs claiming distributions under the Byrd

Amendment had to be filed by a certain date (either October 2,

2001, or within ten days of the publication of a Final Rule

regarding distributions).1 Id.

Plaintiffs’ names did not appear on the potential eligibility

list at any time during 2001. ITC Support List, ITC CAR List 1,

Doc. 5; August 3, 2001 Notice, 66 Fed. Reg. at 40,782. Plaintiffs

did not file for certification for that year. On July 3, 2002,

Customs published a new notice of intent to distribute collected

duties, accompanied by the list of ADPs.2 Distribution of

Continued Dumping and Subsidy Offset to Affected Domestic

Producers, 67 Fed. Reg. 44,722, 44,724-41 (Dep’t Treasury July 3,

2002) (notice of intent to distribute offset for fiscal year 2002)

(“July 3, 2002 Notice”). This notice required that certifications
Court No. 03-00196 Page 7

of eligibility to receive distributions be filed by September 3,

2002. Id. at 44,722. Plaintiffs’ names did not appear on the list

of affected domestic producers published with the July 3, 2002

notice. See id. at 44,724-41.

In late 2002, Plaintiffs learned through “back channels” that

they likely were eligible for a share of duties collected pursuant

to the antidumping order on wax petroleum candles from China. See

Pls.’ Reply Mot. J. Agency R. at 10-11. Plaintiffs wrote to the

ITC to request a review of the record to determine if they had

supported the National Candle Association’s petition, additionally

waiving the confidentiality of their questionnaire responses.

Letter from Louis Steigerwald III, Pres., Cathedral Candle Company,

to Lynn Featherstone, Dir., Office of Investigations, ITC, ITC CAR

List 1, Doc. 6 (Sept. 19, 2002); Letter from Brad I. Root, Vice

Pres., The A.I. Root Company, to Lynn Featherstone, Dir., Office of

Investigations, ITC, ITC CAR List 1, Doc. 7 (Sept. 23, 2002). The

ITC replied to both parties, affirming that they had supported the

petition. Letter from Deanna Tanner Okun, Chairman, ITC, to Louis

Steigerwald III, Pres., Cathedral Candle Company, ITC CAR List 1,

Doc. 10 (Sept. 24, 2002); Letter from Deanna Tanner Okun, Chairman,

ITC, to Brad I. Root, Vice Pres., the A.I. Root Company, ITC CAR

List 1, Doc. 12 (Sept. 25, 2002). Cathedral Candle Company and the

A.I. Root Company then attempted to file certifications of

eligibility for 2002 distributions with Customs on October 2, 2002
Court No. 03-00196 Page 8

3While Plaintiffs are represented by PATTON BOGGS, PLLC in

this case, it appears their prior counsel in this matter was

Collier Shannon Scott, PLLC.

and October 8, 2002, respectively. Def. Customs’ Opp’n Mot. J.

Agency R. at 22; Letter from David C. Smith, Jr., Collier Shannon

Scott PLLC, to Jeffrey J. Laxague, Office of Regs. and Rulings,

Customs, Customs’ Cert. Admin. Rec. (“Customs CAR”) Doc. 1 (Oct. 2,

2002); Letter from David C. Smith, Jr., Collier Shannon Scott,

PLLC, to Jeffrey J. Laxague, Office of Regs. and Rulings, Customs,

Customs CAR Doc. 2 (Oct. 8, 2002).3 These attempts were rejected

by Customs as untimely, the September 2 deadline having passed.

Letter from Michael T. Schmitz, Ass’t Comm’r, Office of Regs. and

Rulings, Customs, to David C. Smith, Collier Shannon Scott, PLLC,

Customs CAR Doc. 3 (Dec. 12, 2002); Letter from Michael T. Schmitz,

Ass’t Comm’r, Office of Regs. and Rulings, Customs, to David C.

Smith, Collier Shannon Scott, PLLC, Customs CAR Doc. 4 (Dec. 12,

2002).

In the instant claim, Plaintiffs ask the Court to direct that

Customs distribute to them their share of duties for both 2001 and

2002. They ask that their late certification filings be excused

because of the ITC’s and Customs’ unlawful actions. Specifically,

Plaintiffs allege that Defendants unlawfully (1) interpreted the

provisions of the Byrd Amendment and Tariff Act so as to cause only

those affected domestic producers who had waived confidentiality to

appear on the list provided by the ITC to Customs and (2) failed to
Court No. 03-00196 Page 9

provide adequate notice of their interpretation of the two laws.

 Standard of Review

When this Court takes jurisdiction pursuant to 28 U.S.C. §

1581(i), it will “hold unlawful and set aside agency action,

findings, and conclusions found to be . . . arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance with law.”

5 U.S.C. § 706(2)(A); 28 U.S.C. § 2640(e). The scope of review

under this “arbitrary and capricious” standard is narrow. Motor

Vehicle Mfrs. Assn. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,

43 (1983). Where the agency whose action is under review shows a

“rational connection between the facts found and the choice made,”

the Court will not substitute its own judgment for that of the

agency. See id. (quoting Burlington Truck Lines, Inc. v. United

States, 371 U.S. 156, 168 (1962)). Even where the agency’s

decision is “of less than ideal clarity,” it will be upheld as long

as the Court can reasonably discern how the agency arrived at that

decision. Bowman Trans., Inc., v. Ark.-Best Freight Sys., Inc.,

419 U.S. 281, 286 (1974) (internal citation omitted). 

Even if an agency’s decision is not arbitrary or capricious,

however, it must still be “in accordance with law.” F.C.C. v.

NextWave Pers. Communications Inc., __ U.S. __, __, 123 S.Ct. 832,

838 (2003) (citing Citizens to Preserve Overton Park, Inc. v.

Volpe, 401 U.S. 402, 413-14 (1971)). This means not only the laws
Court No. 03-00196 Page 10

that the agency itself is charged with interpreting, but all law.

Id.

Accordingly, the Court reviews the agency’s decision to

determine whether it is rational, defensible, and in accordance

with law.

Discussion

Customs promulgated the rule now set out at 19 C.F.R. 

§ 159.63(a) to provide procedures for filing certifications of

eligibility for Byrd Amendment Distributions. This regulation

states that: 

In order to obtain a distribution of the offset, each

affected domestic producer must submit a certification,

in triplicate, or electronically as authorized by

Customs, to the Assistant Commissioner, Office of

Regulations and Rulings, Headquarters, or designee, that

must be received within 60 days after the date of

publication of the notice [of intent to distribute

duties] in the Federal Register, indicating that the

affected domestic producer desires to receive a

distribution.

19 C.F.R. § 159.63(a). Pursuant to this regulation,

Plaintiffs’ claim of eligibility to receive distributions for

2001 and 2002 is untimely.

Accordingly, the Court need not consider the legality of

Defendants’ interpretation of the Byrd Amendment and the Tariff
Court No. 03-00196 Page 11

4The Court notes that Defendants’ interpretation of the

interplay between the two statutes, not having been promulgated

according to a “relatively formal administrative procedure,” is

not due Chevron deference. See United States v. Mead Corp., 533

U.S. 218, 230 (2001).

Act, as it is not the decisive issue in this case.4 While

Defendants may have been less than explicit in providing notice of

their interpretation of the two statutes, they were quite explicit

about the deadline for certification filings. August 3, 2001

Notice, 66 Fed. Reg. at 40,782; July 3, 2002 Notice, 67 Fed. Reg.

at 44,722. Plaintiffs, on the whole, had ample time to discover

that they were not on the list of ADPs, and to inquire as to the

reason for this exclusion or to ask for an amendment of the list

before certification filings were due. Nevertheless, the Court

briefly discusses Plaintiffs’ contentions as to Defendants’

statutory interpretation and notice, if only to clarify why these

issues are not decisive to the case at bar. 

In this case, the agencies were confronted with a statutory

ambiguity arising not from the words of a single statute, but from

the interplay between two statutes. The Byrd Amendment directs the

ITC to prepare a list of all petitioners and petition supporters

still in business. 19 U.S.C. § 1675c(b). This seems clear enough.

The ITC, however, has long interpreted § 777 of the Tariff Act and

their own regulation, 19 C.F.R. § 201.6, to keep respondents’
Court No. 03-00196 Page 12

5Title 19 U.S.C. § 1677f(b)(1)(A) states:

(A) In general. Except as provided in subsection

(a)(4)(A)of this section and subsection (c)of this

section, information submitted to the administering

authority or the Commission which is designated as

proprietary by the person submitting the information

shall not be disclosed to any person without the

consent of the person submitting the information, other

than–

(i) to an officer or employee of the administering

authority or the Commission who is directly concerned

with carrying out the investigation in connection with

which the information is submitted or any review under

this title covering the same subject merchandise, or 

(ii) to an officer or employee of the United

States Customs Service who is directly involved in

conducting an investigation regarding fraud under this

title.

19 U.S.C § 1677f(b)(1)(A). 

Title 19 C.F.R. § 201.6(a)(1) provides, in part:

(a) Definitions. (1) Confidential business

information is information which concerns or relates to

. . . other information of commercial value, the

disclosure of which is likely to have the effect of

either impairing the Commission's ability to obtain

such information as is necessary to perform its

statutory functions, or causing substantial harm to the

competitive position of the person, firm, partnership,

corporation, or other organization from which the

information was obtained, unless the Commission is

required by law to disclose such information. The term

"confidential business information" includes

"proprietary information" within the meaning of section

777(b) of the Tariff Act of 1930 (19 U.S.C. 1677f(b)). 

19 C.F.R. § 201.6(a)(1). 

support for questionnaires confidential.5 Def. ITC’s Opp’n Pls.’

Mot. J. Agency R. at 16-17. 

Neither the statute nor the regulation explicitly requires

that the identity of petition supporters or the fact of their
Court No. 03-00196 Page 13

6Plaintiffs argue that the ITC furnishes no proof that the

agency’s ability to collect information or respondents’

competitiveness would be harmed by disclosure of the identity of

questionnaire respondents and their support of a petition. They

argue that an agency may not simply rely on speculation in

defending the reasonableness of its interpretations, and that an

interpretation unsupported by empirical evidence is not entitled

to deference. Pls.’ Reply Mot. J. Agency R. at 10. The Court

does not reach this issue, as it decides this case on other

grounds. 

support be maintained as confidential information. 19 U.S.C. §

1677(f)(b)(1)(A); 19 C.F.R. § 201.6. However, the questionnaires

distributed in the candle antidumping investigation were labeled

“Business Confidential,” thereby putting respondents on notice that

their answers were not to be made publicly available, and bringing

the provisions of 19 U.S.C. § 1677(f)(b)(1)(A) into play. Blank

Quest., ITC CAR List 1, Doc. 1. The ITC’s regulation does not

require notice. 19 C.F.R. § 201.6 (2000). Moreover, the ITC

interprets its regulation to permit the agency to maintain

information in confidence, where its release could either hurt the

ITC’s ability to obtain information in future investigations or

harm the business competitiveness of questionnaire respondents.

Def. ITC’s Opp’n to Mot. J. Agency R. at 16-17.6

Plaintiffs argue that the Court should understand the Byrd

Amendment, by its silence on the issue of confidentiality, to

supersede or bypass any other law or regulation on that point. See

Pls.’ Reply Mot. J. Agency R. at 11-12. It is true, as Plaintiffs

point out, that Congress is “presumed to legislate against the
Court No. 03-00196 Page 14

7The Byrd Amendment, codified at 19 U.S.C. § 1675c, was

passed as Title X of Pub. L. No. 106-387 (2000), a large

appropriations bill. The Act was proposed in the Senate in

January, 1999 by Sen. DeWine (OH), and in the House in February,

1999 by Rep. Regula (OH). S. 61, 106th Cong. (1999); H.R. 842,

106th Cong. (1999). The identical bills failed to garner

support. However, the text was later inserted as a rider into the

appropriations bill. H.R. 4461, 106th Cong. (2000)(enacted);

H.R. 5426, 106th Cong. §§ 1001-1003 (2000)(enacted). The Act was

not debated and consequently comes to the Court with little

history, other than a set of findings that accompany the

legislation. They are as follows:

 (1) Consistent with the rights of the United States

under the World Trade Organization, injurious dumping

is to be condemned and actionable subsidies which cause

injury to domestic industries must be effectively

neutralized. 

 (2) United States unfair trade laws have as their

purpose the restoration of conditions of fair trade so

that jobs and investment that should be in the United

States are not lost through the false market signals. 

 (3) The continued dumping or subsidization of

imported products after the issuance of antidumping

orders or findings or countervailing duty orders can

frustrate the remedial purpose of the laws by

preventing market prices from returning to fair levels.

backdrop of existing law.” Id. at 11; see also Morgan v. Principi,

327 F.3d 1357, 1361 (Fed. Cir. 2003) (internal citation omitted).

However, this argument works both ways. It may either be that

Congress intended the Byrd Amendment to trump the confidentiality

provisions of the Tariff Act, or, knowing of the Tariff Act’s

requirements and the ITC’s practice, expected only those ADPs who

had waived confidentiality to receive distributions. The scant

legislative history of the Amendment cannot offer the Court, as it

could not offer Defendants, much insight into which interpretation

Congress preferred.7 Exercising a traditional canon of statutory
Court No. 03-00196 Page 15

 (4) Where dumping or subsidization continues,

domestic producers will be reluctant to reinvest or

rehire and may be unable to maintain pension and health

care benefits that conditions of fair trade would

permit. Similarly, small businesses and American

farmers and ranchers may be unable to pay down

accumulated debt, to obtain working capital, or to

otherwise remain viable.

 (5) United States trade laws should be strengthened

to see that the remedial purpose of those laws is

achieved.

H.R. 5426, 106th Cong. § 1002 (2000) (enacted). 

8The legislature is presumed to intend to achieve a

consistent body of law. In accord with this principle subsequent

legislation is not presumed to repeal the existing law in the

absence of expressed intent. Courts are reluctant to repeal by

implication even when the later statute is not entirely

harmonious with the earlier one. If two statutes conflict

somewhat, the Court must, if possible, read them so as to give

effect to both, unless the text or legislative history of the

later statute shows that Congress intended to repeal the earlier

one and simply failed to do so expressly. 1A Norman A. Singer, 

Statutes and Statutory Construction, § 23.9 (6th ed. 2002).

9The list also appeared on ITC’s website at this time. See

Def. ITC’s Opp’n to Mot. J. Agency R. at 23.

construction, Defendants attempted to give as much effect to both

laws as was possible.8

Defendants did not give notice of their interpretation in the

Federal Register, but the interpretation did appear on Customs’

website in the form of the explanatory letter that ITC provided to

Customs, along with the ITC’s preliminary list of ADPs.9 Def. ITC’s

Opp’n to Mot. J. Agency R. at 23. Moreover, a Federal Register

notice describing the list’s availability online to interested

parties alerted such parties to the list at least, and possibly to
Court No. 03-00196 Page 16

10It is well established by both statutes and cases that the

publication of an item in the Federal Register constitutes

constructive notice of anything within that item. 44 U.S.C. §

1507; Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380 (1947);

Stearn v. Dep’t of the Navy, 280 F.3d 1376, 1384-85 (Fed. Cir.

2002). Plaintiffs were on constructive notice of the existence

of the list and Customs’ request that questions be directed to

the ITC from the time of publication onward.

Plaintiffs argue that under Morton v. Ruiz, Defendants

should have notified them of the precise interpretation. Pls.’

Reply Mot. J. Agency R. at 14. That case, however, is factually

distinguishable. Morton dealt with an interpretation by the

Bureau of Indian Affairs that limited assistance under the Snyder

Act to Native Americans living on reservations, rather than

extending it to those who also lived near reservations. Morton v.

Ruiz, 415 U.S. at 204 (1974). This interpretation plainly

contradicted the Bureau’s own prior interpretation and the

legislative history of the Snyder Act and Congress’ annual

appropriations laws. Morton, 415 U.S. 199, 229. The instant case

is not similar. Rather, the ITC and Customs undertook to enforce

the plain letter of the Tariff Act and their regulation pursuant

to the Act while simultaneously giving effect to the Byrd

Amendment. Moreover, the resulting interpretation cannot have

been said to affect Plaintiffs’ actual rights to receive Byrd

Amendment distributions; they were still ADPs and eligible to

apply for certification.

the letter. June 26, 2001 Notice, 66 Fed. Reg. at 33,920-21.10

Most importantly, while the particular interpretation adopted by

the ITC and Customs was not the subject of explicit notice, the

fact that the two agencies were preparing a list of ADPs who would

be eligible for Byrd Amendment distributions had been announced in

the terms of the Byrd Amendment itself. 19 U.S.C. § 1675c. The

enactment of the Byrd Amendment was hardly a secret –- its effects

were widely discussed in the media, if only because of the Byrd

Amendment’s controversial nature under the rules of the World Trade
Court No. 03-00196 Page 17

11A search of the LexisNexis news database for the terms

“Byrd Amendment,” restricted to only those articles appearing

between October 1, 2000 and October 1, 2001, found 293 articles

discussing the Byrd Amendment and its effects. LEXIS, News Group

File (All) (conducted Oct. 2, 2003). The Byrd Amendment was

widely discussed in business and trade publications, but also in

general circulation newspapers.

We note also that the WTO Appellate Body recently ruled that

the Byrd Amendment is inconsistent with U.S. obligations under

the Agreement on Antidumping. United States–Continued Dumping

and Subsidy Offset Act of 2000 - AB-2002-7 - Report of the

Appellate Body, WT/DS217/AB/R, 46 Bernan’s Annot. Rep. 97 (Jan.

16, 2003).

Organization.11

Plaintiffs further argue that Defendants’ failure to give

notice of their interpretation violates the Administrative

Procedure Act. Pls.’ Mot. J. Agency R. at 11-15. Plaintiffs claim

that Defendants should either have published their interpretation

in the Federal Register or given personal notice to affected

parties under 5 U.S.C. § 553(b). Id. at 15. However, Defendants’

interpretation would be, if a rule at all, an interpretive rule–-

one which merely clarifies the agency’s position regarding the

meaning of a statute or its own regulations. See Splane v. West,

216 F.3d 1058, 1063 (Fed. Cir. 2000). At least one Court

addressing this issue has held that publication of an interpretive

rule is only required where that interpretive rule reflects a

change in policy. Knutzen v. Eben Ezer Lutheran Hous. Ctr., 815

F.2d 1343, 1351 (10th Cir. 1987) (internal citations omitted).

Here, rather than a change in policy, there appears to be the

application of an old policy (confidentiality of questionnaire
Court No. 03-00196 Page 18

12Though the Court need not decide this issue, it seems

probable that 5 U.S.C. § 552 would not require publication of the

interpretation at issue here. While 5 U.S.C. § 553 exempts

interpretive rules from publication, 5 U.S.C. § 552 requires that

certain interpretations be published, while others need only be

made available to the public on request. 5 U.S.C. § 552(a)(1);

552(a)(2). 5 U.S.C. § 552(a)(1)(D) requires the Federal Register

publication of “statements of general policy or interpretations

of general applicability formulated and adopted by the agency.” 

5 U.S.C. § 552(a)(1)(D). However, subsection 552(a)(2)(B)

contemplates the existence of “statements of policy and

interpretations which have been adopted by the agency” that need

not be published in the Federal Register. 5 U.S.C. §

552(a)(2)(B). One federal court stated the requirements this

way:

In determining whether particular policy or

interpretive statements are required to be published or

whether they need only be made available [to the public

upon request], subsections (a)(1) and (a)(2) of section

552 must be read together: “statements of policy” must

be available and “statements of general policy” must be

published; “interpretations which have been adopted by

the agency” must be available and “interpretations of

general applicability” must be published.

Lewis v. Weinberger, 415 F. Supp. 652, 659 (D.N.M. 1976)

(internal citation omitted). The case goes on to state:

 A policy statement is not qualified as “general”

nor is an administrative interpretation deemed to be

“of general applicability” if: (1) only a clarification

or explanation of existing laws or regulations is

expressed; and (2) no significant impact upon any

segment of the public results. . . . [P]olicy or

responses) to a new statute. However, even if the publication of

all interpretive rules is required under the Freedom of Information

Act, 5 U.S.C. § 552, it is not clear that it was necessary for

Plaintiffs here to be apprised of the particular interpretation

adopted by Defendants in order to act to protect their rights under

the Byrd Amendment.12
Court No. 03-00196 Page 19

interpretive statements are deemed to fall within the

scope of 552(a)(1)(D), requiring their publication,

when they adopt new rules or substantially modify

existing rules, regulations, or statutes . . .

Lewis, 415 F. Supp. at 659 (internal citations omitted). The

ITC’s interpretation of the interplay between the Tariff Act and

the Byrd Amendment, as evidenced by the explanatory letter to

Customs, appears to be a clarification or explanation of the

Tariff Act. Moreover, the interpretation does not seek to adopt

a new rule, but to apply an old one in a new context.

13Plaintiffs claim that it is unfair to consider them on

constructive notice of something that did not appear in the

Federal Register, i.e., their names. Pls.’ Reply Mot. J. Agency

R. at 5. While it is true that Plaintiffs’ names at no time

appeared in the Federal Register as part of the list of ADPs,

they were on constructive notice that the list existed, that they

could direct questions to the ITC and even, through a comparison

of the June 2001, August 2001, and July 2002 lists, that updates

were occurring.

While Plaintiffs appear to have been unaware at the time of

the Act’s passage that they had some fifteen years previously

participated in an antidumping investigation, it is far from clear

that Defendants were under an obligation to inform them of this.

Defendants were under an obligation to compile and publish a list

of ADPs. 19 U.S.C. § 1675c(d). Even if that list were imperfect,

Plaintiffs were on constructive notice of the list’s existence.13

Plaintiffs could have petitioned to be added to the list at any

time from its public debut on Customs’ website in March 2001 until

certifications were due for that year. Even having missed the

deadline for 2001 distributions, Plaintiffs could have petitioned

for addition to the list and certification for 2002 distributions

at any time after the 2001 deadline until September 2, 2002. 
Court No. 03-00196 Page 20

14There is some debate between the parties as to whether

Defendants would have allowed a certification filing by a company

not on the list of ADPs. Even assuming, arguendo, that

Defendants would not have allowed such a filing, Plaintiffs were

in no way prevented from asking for an evaluation of their

eligibility, and then proceeding to file a certification after

receiving an affirmative evaluation. In fact, when Plaintiffs

became aware of their probable eligibility for Byrd Amendment

distributions, this is just the course they took. See Letter

from David C. Smith, Jr., Collier Shannon Scott, PLLC, to Jeffrey

J. Laxague, Office of Regs. and Rulings, Customs, Customs CAR

Doc. 1 (Oct. 2, 2002); Letter from David C. Smith, Jr., Collier

Shannon Scott, PLLC, to Jeffrey J. Laxague, Office of Regs. and

Rulings, Customs, Customs CAR Doc. 2 (Oct. 8, 2002); Letter from

Michael T. Schmitz, Ass’t Comm’r, Office of Regs. and Rulings,

Customs, to David C. Smith, Collier Shannon Scott, PLLC, Customs

CAR Doc. 3 (Dec. 12, 2002); Letter from Michael T. Schmitz, Ass’t

Comm’r, Office of Regs. and Rulings, Customs, to David C. Smith,

Collier Shannon Scott, PLLC, Customs CAR Doc. 4 (Dec. 12, 2002).

In short, it was not necessary for Plaintiffs to know why they

had been left off the list in order to make inquiries. Plaintiffs

may have been honestly unaware of the implications of the Byrd

Amendment, remaining uninformed about their ability to apply for

certification for distributions for over two years after the Byrd

Amendment’s enactment. However, while this is certainly a shame,

it is also in no way Defendants’ responsibility. Defendants were

not required by either the Byrd Amendment or any other law to

personally notify ADPs of the Act and its effects. Moreover,

Defendants gave ample time for corrections to be made to the list

and the Federal Register notices of intent to distribute were clear

about the certification deadlines.14

Failure to meet the regulatory deadlines cannot be excused as

a result of Customs and the ITC’s separate failure to explicitly
Court No. 03-00196 Page 21

15The court notes that the instant case is distinguishable

from a line of cases arising out of FCC licensing. For instance,

Satellite Broad. Co. v. F.C.C., 824 F.2d 1 (D.C. Cir. 1987),

dealt with conflicting and confusing FCC regulations regarding

the place of filing. The FCC had reasonably interpreted its

regulations to require filing in Gettysburg, Pennsylvania.

However, one company applying for a license had also reasonably

interpreted the regulations to require filing in Washington, D.C.

Id. Their application was forwarded from D.C. to Gettysburg by

FCC officials, but by the time it reached Gettysburg, the filing

deadline had passed and the FCC denied the application as

untimely. Id. The Court of Appeals for the D.C. Circuit

remanded the case to the FCC, stating that where there are two

reasonable interpretations of regulations, the FCC cannot choose

between them to the detriment of an applicant without making its

choice clear. Satellite Broad. Co., 824 F.2d at 5. While

Satellite Broad. Co. seems superficially similar to the case at

bar, Satellite Broad. Co. dealt with punishing a party for

breaking a rule of which it had no clear notice–the rule

requiring that applications be filed in Gettysburg. In this

case, Plaintiffs do not allege that they are being punished for

failing to comply with an agency rule about which they had no

notice. If they are being punished for failure to comply with

any rule, it is the deadline set by Defendants for certification

filings, a rule of which Plaintiffs had ample notice. Moreover,

the exact method of filing a certification was made abundantly

clear by Defendants through their Federal Register notices. 

notify the public of precisely why certain names were kept off the

published list of ADPs. While Plaintiffs argue that they cannot be

held responsible for not noticing that their names were not in the

Federal Register, they can be held to have been on notice, due to

the three Federal Register notices published by Customs, along with

the website publication of the list of ADPs and the explanatory

letter, that there was a list, that they possibly should have been

on it, and that there was a specific deadline for filing their

claims.15
Court No. 03-00196 Page 22

Conclusion

Therefore, because it cannot be shown that Defendants’

dismissal of Plaintiffs’ applications as untimely was arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance

with law, Plaintiffs’ motion for judgment on the agency record is

denied, and judgment is entered for Defendants.

 

Donald C. Pogue 

 Judge 

Dated: New York, New York

 October 14, 2003
ERRATUM

Please make the following change to Cathedral Candle Co. v. U.S. Int’l Trade Comm’n,

Slip Op. 03-131, October 14, 2003, Court No. 03-00196:

On page 4, first paragraph, at the fifth line, “Kaplan” should instead be “Koplan.”

October 17, 2003